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for the year ensuing; and the said Samuel Foot, on the 21st of November following, was sworn before the said Samuel Ennys, then Deputy Recorder, and the capital Burgesses; and the said Samuel Ennys and Richard [292] Plint, so being Aldermen as aforesaid, were then present. Foot also proved the writ of Mandamus, and the return made by the defendant Prowse, as stated in the declaration; and further, that he the said Samuel Foot was elected and sworn Alderman on the 9th of October 1714; and that no other persons had been elected or sworn, in the places of any of the said Aldermen, at the end of their respective years; but that they the said Samuel Foot and Samuel Ennys had continued ever since their said first elections to be Aldermen, to act in the offices of Aldermen by virtue of such their elections that Richard Plint, on the 9th of October 1713, was elected Alderman of the said borough, and afterwards sworn into the office of Alderman before Mr. Foot, who claimed to be Mayor as aforesaid, in the said Common Council assembled on the 9th of October 1720; and that the swearing of the said Richard Plint into the said office of Alderman, on the 9th of October 1720, was before the election of the said Samuel Foot on that day into the office of Mayor; that the said Plint claimed to be an Alderman by virtue of such his election, and that no other person had been elected Alderman in the place of the said Richard Plint.

In opposition to the evidence thus given on the part of Foot, the defendant Prowea's counsel objected, and insisted that neither Foot, Ennys, or Richard Plint, were Aldermen at the several nominations of the said Samuel Foot to be Mayor of the said borough: and that there were not two Aldermen present at the several nominations of the said Samuel Foot to be Mayor; because there had not been any annual elections of Aldermen, as they insisted by the said letters patent ought to be: yet the plaintiff Foot's counsel insisted, that there were two good Aldermen present at the several nominations of the said Samuel Foot to be Mayor, according to the said letters patent: but the Court of King's Bench were of a different opinion, and declared to the jury, that the said Samuel Foot, Samuel Ennys, and Richard Plint, were not and did not continue Aldermen, at the said several nominations of Samuel Foot to be Mayor; and that there were not two Aldermen present at the nomination of the said Samuel Foot to be Mayor, according to the said letters patent, as there ought to have been; and for that reason, the several nominations of the said Samuel Foot to be Mayor of the said borough, were void, and therefore directed the jury to find a verdict for the defendant Prowse, which was done accordingly. But the counsel for Foot praying a bill of exceptions, which the Judges allowed, judgment was given for the defendant Prowse.

Whereupon the plaintiff Foot brought his writ of error in the Exchequer Chamber; and after two solemn arguments, the judgment given in the Court of King's Bench was, by the unanimous opinion of the Judges, reversed.

The defendant Prowse thereupon brought his writ of error in parliament; and, on his behalf, it was insisted (P. Yorke, T. Hussey), that the words of the charter were plain, that two Aldermen should be elected yearly; that the electors, by the charter, had power only to elect [293] a person being an Alderman to be Mayor, and that there must be at least two of the Aldermen present at every election; and therefore it was conceived, that the defendant Foot was not an Alderman at either of his pretended elections, and consequently not capable of being chosen Mayor. That neither Ennys or Plint were Aldermen at the time of the elections, they, as well as Foot, having been chosen Aldermen several years before, and never re-elected; and Plint not having been sworn till seven years after his election. That if the first election of Mr. Foot could possibly be supposed good, yet he having, in his declaration, insisted upon an election on the 9th of October 1720, being the charter-day, and which election was clearly ill he should not be allowed to resort back to another election, not insisted upon in his declaration, to which Mr. Prowse, for that reason, could not be supposed to have any opportunity of giving an answer. It was therefore hoped, that the judgment of the Exchequer Chamber would be reversed, and the judgment of the Court of King's Bench affirmed.

On the other side it was said (T. Lutwyche, C. Talbot), that the only question in this case was, Whether upon the clauses of the charter, and the facts before stated, it did not appear that Samuel Foot was duly elected Mayor of the borough of Truro? That it appeared by the record, that two Aldermen were present at the election of